Insurer loses lawsuit over water damage

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Apr. 7, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

West Shore Services owned a building in Allendale, Mich., and it hired Brigade Fire Protection to install fire sprinklers in the building. Allegedly, the pipes of the sprinkler system burst, creating water damage to West Shore's building.

West Shore's damages were covered by its insurer, Home-Owners Insurance Co., which filed suit against Brigade to recover its expenses, claiming that Brigade was negligent in "designing, installing and repairing" the sprinkler system.

At the circuit court level, Brigade moved for a directed verdict in its favor, on grounds that there was "no evidence to support a finding that (it) contributed to the failure." The circuit court granted the directed verdict, agreeing with Brigade that there was "no basis on which reasonable minds could differ as to defendant's involvement" in creating the damage.

Home-Owners requested that the court reconsider its ruling in favor of Brigade, claiming that Home-Owners' case was based on two theories: (a) that Brigade was negligent in configuring and installing the sprinkler system, and (b) that Brigade was negligent in inspecting the sprinkler system.

The circuit court denied Home-Owners' motion for reconsideration. Home-Owners appealed.

On appeal, Home-Owners argued that the circuit court's error was in granting Brigade a directed verdict without allowing Home-Owners to present its expert witness testimony. According to Home-Owners, its expert witness was planning to explain how Brigade's actions caused the water damage.

Prior to ruling on Brigade's motion for directed verdict, Home-Owners indicated that a report and photos would be submitted from its expert witness, but did not make an offer of proof of the substance of those items to the circuit court.

In rejecting Home-Owners' argument and affirming the trial court's ruling, the Michigan Court of Appeals explained that in order for the issue of whether the expert witness' evidence should have been admitted for appeal, Home-Owners was required to make the substance of the evidence known to the court via an offer of proof, or the substance must have been "apparent from the context within which questions were asked."

Home-Owners neither called the expert witness to ask any questions nor did it make an offer of proof of the substance of the expert witness' testimony to the court -- either before the court ruled on Brigade's motion for directed verdict or in the course of moving for reconsideration.

Additionally, Home-Owners' opening arguments focused solely on the argument that Brigade improperly tested the sprinklers. As a result, the circuit court had no way to know the substance of the expert witness' testimony before ruling for Brigade.

Because Home-Owners did not preserve the issue of the admissibility of the expert witness' testimony by making an offer of proof to the trial court, the directed verdict in Brigade's favor was upheld on appeal.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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